DeMato v Mallin
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DeMato v Mallin 2012 NY Slip Op 32293(U) August 23, 2012 Supreme Court, Suffolk County Docket Number: 20684/2001 Judge: William B. Rebolini Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Shon FOrol Order f&. ,,~ SUPREME CCRT IAS. - STATE OF NEW YORK PART 7 - SUFFOI"K COUNTY PRESENT: WILLIAM B. REBOLINI Justice Daniel G. DeMato, Diane C. DeMato, Charles Drake, Jr., Lisa Drake and Curt Koch, Motion Sequence No.: 008; MD Motion Date: 6120/12 Submitted: 8/1/12 Plaintiffs, [udex No.: 20684/2001 -againstAttorney for Plaintiff: Barry Mallin, Gail Kriegel Mallin and Town of Southold, Defendants. Clerk of the Court Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP 33 West Second Street, P.O. Box 9398 Riverhead, NY 11901 Attomcy for Defendants: Wickham, Bressler, Gordon & Geasa, Esqs. 13015 Main Road, P.O. Box 1424 Mattituck, NY 11952 Upon the following papers numbered I to 65 read upon this application for swnmary judgment dismissing the amended complaint: Notice of Motion and supporting papers, 1 - 42; Answering Affidavits and supporting papers, 43 - 62; Replying Affidavits and supporting papers, 63 - 65, and upon the conference call with chambers held on August 15,2012; it is ORDERED that this motion by defendants Barry Mallin and Gail Kriegel Mallinfor an order awarding summary Judgment in their favor against plaintiffs is denied. Plaliltiffs Daniel G. DcMato, Diane C. DeMato, Charles Drake, Jr., Lisa Drake and Curt Koch commenced this action by the filing of a summons and complaint on August 31, 2001 for a declaratory judgment declaring that they are possessed of an easement over Bayberry Road, [* 2] neMato \'. Mallin. et al. Index No.: 20684/2001 Page 2 Cutchogue, Nc\v York. and for an order directing the rcmoval by defendants of encroaching structures. PlaintIffs also seek recovery of monetary damages in trespass. [t is alleged in lhe complaInt that the parties are owners of real property located \1l a subdivIsion depicted on a subdivision map entitled "Amended Map A of Nassau Point, owned by Nassau Pomt Club Properties, Inc., situate in Town of Southold, Long lsland, N. Y." (Map of Nassau Point) that was filed in the onice of the Suffolk County Clerk on August IG, 1922. The plaintiffs' properties are shown on the subdIvision map to abut Bayberry Road on its easterly side, so thal Rayberry Road fonns the westem border of each of plaintiffs' properties. It is further alleged in the complaint that the deed to defendants' grantor Henrietta Silvennan which was filed on November 13, 1989 conveyed property that included a portion of Bayberry Road, and thai such conveyance was subject to the rights of others to pass and re-pass over Bayberry Road. It is plaintiffs' contention that defendants' title is burdened with an implied easement along Bayberry Road in their favor. It is also alleged that defendants installed concrete curbing, Belgian block, fencmg and a gate alongportiollS of Bayberry Road which have obstructed plaintiff')' access to Bayberry Road and which have interfered WIth their use thereof. Plamtiffs seek aJudgmcnt declanng that they are possesscd oran casement over Bayberry Road and that defendants must remove the obstructions. Plaintiffs DeMato and Drake also seek recovery of damages for alleged trespass resulting from the erection of fencing by defendants on their properties. By memorandum decision and order of the Court dated September 9,2008 (Weber, J.), plaintiffs were granted leave to amend the complaint to join the Town of Southold. Additional causes of action were asserted in the amended complaint for recovery of damages by plainti Ffs DeMuto and Drake for defendants' alleged interference with their right to use Bayberry Road, which required plaintiffs to undergo additional expense to reconfigure building plans, for a judgment declaring invalid the certificate of abandollment relating to Bayberry Road, and ror a Judgment decluring invalid and unconstitutional Real Property Law S 335 (3). In theil' answer to the amended complaint defendants raised the defense of laches and asscrted as an afllrl11ative defense that Bayberry Road was abandoned in accordance with Real Property Law S 335 (3) by the filing of a certificate of abandonment in the officc of the Suffolk County Clerk on September 26, 2000. Defendants also asserted a counterclaim for recovery of damages in defamation. Plaintiffs' reply to derendants' answcr alleged as an affinnative defense that the statements made to secure the certificate of abandonment were false, that Bayberry Road was open and/or used by the public and not subject to abandonment, and that defendants acted with unclean hands and should be estopped from raising their affinllative defenses and counterclaims. By memorandum decision of this Court dated Apnl2, 2012, the action was dismissed on motion of the Town of Southold as untimely under the four-month statute of limi tations of CPLR 217 governing claims against a municipal body. Defcndants Mallin now 1110vefor an order awardmg summary judgment disll1lssing thc complaint against them. Plaintiffs have opposed the motion. \ll their favor [* 3] DeJ\'Jato v.l\'1allin. et al. Index No.: 20684/2001 Page 3 The law IS well-establtshed that summary judgment is a drastic rcmedy to be granted only when there is clcarly no genuine issue of fact to bc presented at trial (see Andre l' Pomeroy, 35 NY2d 361, 362 NYS2d 131,320 NE2d 853 [1974J; Beninca.Wl v Garrubo, 141 AD2d ()36, 529 NYS2d 797 [2d Dcpt 19881). The function of the court in determming a motion for summary judgmenl is issue finding, not issue detennination (Pall1ote Big Alpha Foods, Inc. v .. \'chefmall, 12] AD2d 295, 503 NYS2d 58 (1st Dept 1986]). The courts have repeatedly held that in order to obtain summary judgment, movant must establish its claims or defenses sufficiently to warrant a court's directingjudgment in its favor as a matter oflaw (see Gilbert Frank Corp. v Fedemllll.'lurance Co., 70 NY2d 966, 525 NYS2d 793, 520 NE2d 512 [1988], citing Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595, 404 NE2d 718 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790, 390 NE2d 298 [1979]). The party opposing thc motion, on the other hand, must produce evidentiaryproofin admiSSible fonn sufficient to require a trial of material questions of ract on which the opposing claim rests (see Gilbert Frank Corp. v Federal Insurance Co., supra). Furthennore, thc evidence submitted in connection with a motion for summary judgment should be viewed 111 the light most favorable to the party opposing the motion (RobimwlI v St1'Oug Memorial Hospital, 98 AD2d 976, 470 NYS2d 239 [4th Dept 1983]). In support of their motion, defendants assert that no express easement to Bayberry Road was granled to plaintiffs. Plaintiffs do not dispute such contention. The chain oftitlc for that portion of defendants' property referred to as "Lot NumbcrTwo Hundred and Twenty-two, (222)" begins with a 1923 deed from Nassau Point Club Properties Inc. to Floyd S. Brown. Title to the portion or Bayberry Road bounded westerly and southerly by the easterly and northerly lines oflot 222 and by the curved line of Wunneweta Road on the west and south was conveyed by quitclaim deed from Nassau Point Club Properlies to Abraham L. Garber and Alberl Pollack by deed dated August 29, 1951. By deed dated August 2, 1971, title to lots 222 to 226, inclusive, and to a certain portion of Bayberry RO,ld was conveyed to Edward N. Cartnick and Marie M. Cartnick, subject to the "[r)lghts .. any person may have Ill. . Bayberry Road" without a specific description of those rights. [n 1983, the CUlllicks conveyed a port-ion of tile property, now known as lot 7.2, 10 Daniel Silverman and Henrietta Silvellllan and a portion of the propel1y, now known as lot 7.1, to 1581h Street Realty, Inc. The deed dated April 22, 1983 from the Cartnicks to 158110 Street Realty, Inc., expressly slates that the conveyance is subject to the "[r]ights any person may have in the aforesaid Bayberry Road, including the rights of others to pass and repass over Bayberry Road." In 1997, bOlh lots 7.1 and 7.2 were conveyed 10 the defendants Mallin by deeds which do nol expressly subject the conveyances to the rights of others in Bayberry Road. The plaintiffs DeMato own lots 134 and 135 on the Map of Nassau Point, now known as lot 5.3 on the Suffolk County Tax Map ofDistriet 1000, Section 111.00, Block 12.00. Plaintiffs Drake 0\\/11 lots 132 and 133, no\\/ known as lot 5.2. Plaintiff Koch owns lots 138 and 139, now known as lot 5.5. The ehalll of title for all of the plaintiffs' lots begins With a deed conveyance in 1926 [i·OIll Nassau Point Club Properties Inc. to.J. Alonzo Hulse, and a deed conveyance the following duy to John D. Howell. In 1947 the lots were transferred to Arthur H. Huene and Elsie B. Huene. Following Hucne's death. a deed conveyance made in 1995 to Trustees ofiols 132 and 133, as well [* 4] De]\'lato v. Mallin. et al. Index No.: 20684/2001 Page 4 as lots 136 and 137, noted that the property line ran "along the easterly side of Bayberry Road. In 1907 the Trustees conveyed lots 136 and 137 to Koch by deed which stutes that the property line runs "along the easterly SIde of Bayberry Road" In 1998 thc Trustees conveyed lots 132 and 133 to Drake by deed that describes the lot as runmng "along the easterly side of Baybcry [sic] Road." According to the affidavit of plaintiff Curt Koch as well as his deposition testimony, Koch used Bayberry Road in his vehicle "at least a dozen times" before purchasing the property 111 ugust A 1997, and "at least another dozen times between August 1997 and the issuance ofa building pennit 1Jl ] uly of 1998 and continuing thereafter." In addition, Mr. Koch spoke with defendant Barry Mallin in July of2000 because his post and rail fence along Bayberry Road was blocking Koch's access to BaybelTY Road. Since Mallin indicated that he wanted scrccning for pnvacy, on August 8, 2000 Koch sent Mallin a proposal for screening along Bayberry Road with accesS on to the adjacent properties. According to Koch, at one point Mallin suggested that Koch pay Malllll"to use Bayberry to offset some of his taxes." all or about August 11,2000 the defendants executed a certificate 01" abandonment in which they certified that BaybelTYRoad "is neither open, nor public highway, nor used by the public, nor necessary for the usc of owners, occupants or any other persons havll1g an interest lJ1any part of the subdivision." On September 14,2000, the Town Assessor consented to and approved the defendants' application and the certificate of abandonment was thereafter filed in the office ol"lhe Suffolk County Clerk. It is avcm~d by Koch that the defendants nevcr forwarded a copy of the certificate of abandonment to him and that Koch learned of it when the defendants' answer was served in this action. It is well-established that when property is described in a conveyance with reference to a subdivision map dcpicting proposed streets abutting the lot conveycd, cascments in the private streets appurtenant to the lot pass to the grantee with the conveyance (see Scagliolte \I Commoltwealth Land Title IllS. Co., 303 A D2d 671, 757 NYS2d 84 [2d Oept 2003]; see also DeRuscio \I Jacksoll, 164 /\D2d 684, 565 NYS2c1593 [3d Dept 19911). Moreover, the implied easement so conveyed is '"as extensive and unrestricted as if they were public streets" (Nassau Point ProjJ. OWllers AsslI. I' Tirado, 29 AD3d 754, 757, 815 NYS2d 674 [2d Dept 20061, quoting Dalton )I Levy, 258 NY 161, 165,179 NE 371 [1932]). Although defendants acknowledge the general rule that would indicate that plaintiffs possess an Implicd casement over Bayberry Road, Lheyargue that no implied easement exists because the 1951conveyance of title to the road was without express reservation of any rights to lhe-adjacent property owners. Assuming arguendo that an implied easemenl eXisted, however, the defendants also eorllcnd that the filIng of the certi ficate of ahandonmcnt restored Baybeny Road to its status as property Creeof any cncumbrance. In this regard, the defendants assert that because Bayberry Road \vas "properly abandoned" under Real Property Law 335(3), it was rcstored to ItS status as dcscribec1land. Defcnd<lllls also argue that the dismissal oCplaintifTs' claims against the Town or Southold bars any challenge to the valJdity of the certificate of abandonment, although such dis1111Ssa] not on thc mcrits and was made solely on the ground that the clalms were tllne-barred was underCPLR2I7. * [* 5] DeMaio v. Mallin. ('f al. Index No.: 2068412001 Page 5 It is the detennination of this Court that triable issues of fact havc been raised in the evidence before this Court. In view of the undisputed evidence that the plaintiffs' lots were conveyed with reference to a subdivision map depicting Bayberry Road as abutting the lots conveyed, defendants' property rights was subject 10 the rights of plainti ff landowners who own proper1y to which the disputed street is appurtenant (see iVassau Point Prop. OWller~· s."'. v Tirado, supra, 29 AD3d 754, A 757,815 NYS2d 674 r2d Dcpt 2006]). There is evidence before this Court that suggests that Bayberry Road was not "properly abandoned" as a result of alleged misrepresentations made on the certificate of abandonment. Thus, plaintiffs have raiscd a triable issue or ract whether defendants should be estopped from asscl1ing that their filing of a certificate of abandonmcnt extinguished any rights that the plaintiffs had in Bayberry Road. The principle of estoppel "prohibits <I person, upon princIples of honesty and fair and open dealing, from asserting rights, the enforcement of which would, through his omissions or commissions, work fraud and mjustice" UJlhite " LaDue & Fitch, /IIC., 303 NY 122, 128, 100 NE2d 167 [1951 J, quoting Rothschild )' Title Guar. & Trust Co., 204 NY 458, 464). The record before this Court demonstrates Ihat issues exist whether defendants' conduct is sufficiently culpable to justify enforcing equitable estoppel against them. rti{:U(A/Z'.J6dtM~ Dated: liON. WILLIAM B. REBOLlNI, J.S.c. ___ FINAL DISPOSITION x NON-FINAL I)ISPOSITION
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